Is Section 35 the new Section 28?

Rishi Sunak’s controversial move to block the Scottish government’s landmark gender reforms will propel the already volatile and vitriolic debate about the rights of trans people into the realm of a full-on constitutional crisis.

Long-standing rumours were confirmed on Monday as Sunak and Scotland Secretary Alistair Jack prevented the SNP’s recently passed Gender Recognition Bill from gaining Royal Assent by issuing a section 35 order, which allows the UK government to block devolved legislation if it would modify laws reserved to Westminster and have an “adverse effect” on the application of those laws.

While similar proposals were mooted during Liz Truss’ brief premiership, this move – the first time in history the section 35 mechanism has been activated – represents an unprecedented escalation in the heated debate about the rights of trans people.

Trans people make up only 0.5% of the population, and trans men and women who can benefit from the Gender Recognition Reform Bill just 0.2%. Despite this, their lives and identities are now part of a political maelstrom that, as well as the wider culture wars, now includes Scottish independence and the constitution.

Will Section 35 be the new Section 28 for the Conservatives?

Twenty years on from the repeal of Mrs Thatcher’s law banning the ‘promotion of homosexuality’, the current Prime Minister risks re-toxifying his party’s brand by making section 35 the new section 28.

The Gender Recognition Reform Bill sets out reforms to the process by which a trans person can change their legal gender in Scotland. The main proposals involve removing the requirement for a gender dysphoria diagnosis, reducing the period in which applicants need to have lived in their ‘acquired gender’ to three months and lowering the minimum age that someone can apply from 18 to 16.

These reforms are the result of an extremely lengthy consultation process – beginning in November 2017 – with no fewer than 8 stages, making it one of the most consulted on bills in the history of the Scottish parliament. The measures are similar to those proposed by Theresa May in 2017 – later abandoned by then equalities Minister Liz Truss in 2020.

Sunak’s hardline stance on trans rights, choosing to take the ‘nuclear option’ of blocking the bill, rather than pursuing a less confrontational approach such as invoking section 33 powers, appears to be one thing that the increasingly ungovernable parliamentary Conservative party can all agree on.

Trans rights has in recent years become an obsession for social conservatives and right-wing press outlets such as the Times, the Telegraph and the Mail. It’s also a particular cause of famed culture warrior and current equalities minister Kemi Badenoch who in leaked recordings infamously referred to trans women as ‘men’ and has recently appointed the doyenne of the anti-trans movement JK Rowling as an advisor on gender policy.

Whilst the move might be seen as part of a carrot-and-stick approach to trans rights, with reports of the government bringing forward a ban on all forms of so-called ‘conversion therapies’ – including for trans people, in a reversal of the position of the Johnson administration – Sunak’s radical move to block reforms already in place in 30 other countries worldwide should be viewed in the context of an increasingly hostile environment for trans people in the UK.

Having topped the ‘Rainbow Europe’ LGBTQ+ rankings in 2015, last year Britain fell to 14th place as a result of the “toxic” climate that has developed in Britain helped by “anti-trans narrative and rhetoric and mobilisation” in British media and society. Whilst in 2021 the Women and Equalities Select Committee criticised the government’s stalling on gender recognition reform, saying it “caused real distress to many within the transgender community”.

Just this week, the government also announced it was exploring ending reciprocal acceptance of gender recognition certificates from countries such as Canada, Australia and New Zealand that have self-ID systems in line with the SNP proposals. On Monday, the High Court found that despite causing ‘distress and fear’, waits of over four years for a first appointment with a gender dysphoria specialist – part of the reason that reforms to our gender recognition laws are urgently needed – were not illegal.

But Sunak’s headstrong embrace of trans rights as a ‘wedge issue’ that can unite his parliamentary party might not be the win-win it first appears to be. It’s evidence of how beholden to cultural issues the party has now become, and how far away from public opinion on the issue they are now straying in their ‘war on woke’.

Then there’s the frankly astonishing spectacle of the Conservative and Unionist Party gambling the integrity of the union on the issue of trans rights – something that two thirds of Britons say they pay little or no attention to. Clearly the move is designed to poke the SNP beast as they prepare to turn the next general election into a ‘de-facto referendum on independence’.

Problems for Labour

Sunak’s response does, however, pose big problems for a Labour party that thus far under Keir Starmer’s leadership has refused to take a stance on trans rights, with shadow cabinet triangulation leading to farcical statements such as “I’m not woke but I’m not anti-woke either”.

While Labour has committed to ‘modernising the gender reform act’, no detail has yet been offered on what this actually means. Meanwhile, controversial anti-trans MP Rosie Duffield continues to sit as a Labour MP despite calls for the removal of the whip, campaigners warn the party’s relationship with trans people could be ‘irreversibly fractured’, and LGBT+ Labour are pushing for the adoption of a formal definition of and zero tolerance approach to transphobia within the party.

The uncomfortable reality for Keir Starmer is that 18 of 22 Labour MSPs voted for the bill, and his current ‘it’s a matter for Scottish Labour’ line will not hold under persistent pressure. On Sunday, the Labour leader went even further than some Cabinet ministers by saying that 16 year olds – who Labour want to be able to vote, as well as marry, pay tax and give meaningful sexual consent – are too young to change their legal gender.

Labour’s current approach of trying to avoid annoying either side of the debate is succeeding only in annoying both sides, and whether Starmer decides – with his legal background – to back the government’s move, or to push back against this unprecedented intervention, will be a hugely important moment.

Other parties

Disagreements amongst progressives over trans rights aren’t unique to Labour. The Green Party has been dogged by an ongoing row about trans rights that has split the party in two. As have the SNP, who have endured a bitter dispute with Nicola Sturgeon on one side and high profile MP Joanna Cherry on the other.

As exemplified by the furore over the current, debates about trans rights have shown a tendency to eventually be debased to an inevitable discussion of genitalia.

As long as we have a political and media ecosystem that fundamentally does not respect trans people, their lives will continue to be used as a political football. Trans rights, specifically the push back against them, will continue to be used to signal politicians’ toughness on ‘woke’ or on Scottish nationalism or on those to the left of the Labour leadership.

Meanwhile trans people continue to wait years for treatment, to be victims of hate crime, of bullying in the workplace and at school, and to be murdered and commit suicide at disproportionate rates. The Gender Recognition Reform Bill promised a tentative first step to improve the lives of trans people in the UK.

Tragically, their wait to be treated with dignity and compassion will now also continue.